The Application of the Director General re Adoption of JMS and LJS

[2012] NSWSC 786

Supreme Court

New South Wales

Case Title:	The Application of the Director General re Adoption of JMS and LJS
Medium Neutral Citation:	[2012] NSWSC 786
Hearing Date(s):	13 June 2012
Decision Date:	13 June 2012
Jurisdiction:	Equity Division - Adoption List
Before:	Brereton J
Decision:	Order for adoption made
Catchwords:	ADOPTION - child over 18 years - Adoption Act, s 101(1)(a) - whether with child's consent court can change name in making adoption order - Adoption Act, s 55 - child who is 12 or more but less than 18 who is incapable of giving consent - exceptional circumstances required - nature of exceptional circumstances
Legislation Cited:	(NSW) Adoption Act 2000, s 8, s 24, s 54(1)(d), s 54(3), s 55, s 67, s 101 (NSW) Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Baker v The Queen (2004) 210 ALR 1 Re A & B (Adoption by Grandparents) (2003) 30 Fam LR 387 R v Kelly (Edward) [2000] QB 198
Texts Cited:
Category:	Principal judgment
Parties:	Director General New South Wales Department of Family and Community Services
Representation
- Counsel:
- Solicitors:	Ms Hailstone (Crown Solicitors)
File number(s):	A172/2011
Publication Restriction:

JUDGMENT (EX TEMPORE)

1. HIS HONOUR: Before the Court is a summons filed by the Director General of the New South Wales Department of Family and Community Services (Director General) for orders of adoption and related orders in respect of two children, JMS born 29 January 1994 and his brother LJS born 17 June 1995. From those dates it will be apparent that JMS has now attained 18 years of age whereas LJS is approaching 17 years of age. That difference in ages has consequences under the (NSW) Adoption Act 2000 (Adoption Act) for the matters in respect of which the Court must be satisfied before it can make an adoption order.

2. Lest there be any doubt about it, let me say at the outset that I am entirely satisfied on all of the evidence that it is plainly in the interests of both of the children that an adoption order be made. Before I can do so, however, I have to be satisfied that a number of procedural safeguards required by the Adoption Act before an adoption order can be made have been met.

JMS

1. Because JMS is 18 years of age, I must first be satisfied, under s 24 of the Adoption Act, that he was cared for by the applicants for the adoption order - for which purposes an adult child is taken to have been cared for by the applicant if, as a ward within the meaning of the (NSW) Children and Young Persons (Care and Protection) Act 1998, he has been in their care and responsibility. Those circumstances apply in JMS's case, and, accordingly, he is eligible to be adopted under s 24.

2. Again, because he is 18 years of age, s 54(1)(d) has the consequence that the consent of the birth parents is not required, and it is therefore not necessary to make a consent dispense order in respect of the birth parents. The Court is nonetheless required by s 54(3) to be satisfied that notice of the application for adoption order has been given to the persons whose consent would otherwise have been required. I am satisfied that at least 14 days' notice of the application of the order containing the prescribed particulars has been given to the birth mother and to the birth father, as established by the affidavit of Ms Waterman sworn 10 April 2012.

3. Taking into account all relevant matters referred to in s 8, and in particular the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, the nature of the relationship of the child with each proposed adoptive parent and the suitability and capacity of each proposed adoptive parent to provide for the needs of the child including the emotional and intellectual needs of the child, I am satisfied that the best interests of the child would be promoted by the adoption of the proposed adoptive parents.

4. I am satisfied that as far as practicable, and having regard to the age and understanding of the child, the wishes and feelings of JMS have been ascertained and due consideration given to them. I am satisfied that the prospective adoptive parents, Mr and Mrs Z, have been selected in accordance with the Act, and that consent to the adoption of the child has been given by every person whose consent is required under the Act, and has not been dispensed with.

5. I am satisfied that, JMS not being an Aboriginal or Torres Strait Islander child, the culture, any disability, language and religion of the child and the child's names, identity, language and cultural and religious ties have been taken into account in the making of the adoption plan.

6. I am satisfied that the parties to the adoption having agreed to an adoption plan, the arrangements proposed in it are in the child's best interests and are proper in the circumstances. I consider that the making of an adoption order would be clearly preferable, in the best interests of the child, than any other action that could be taken by law in relation to the care of the child. Accordingly, I will make an order for the adoption of JMS by the proposed adoptive parents Mr and Mrs Z.

7. Section 101 of the Act deals with the names of children upon an adoption order being made. Section 101(1)(a) provides, in effect, that where an adoption order is made in respect of a child 18 or more years of age, the child is to have the same surname and given name or names as he or she used immediately before the order is made, unless the child otherwise decides. The section then goes on to provide that the Court may make orders as to the name of a child less than 18 years of age upon an adoption order being made, and makes various other provision so far as the names of children following adoption is concerned. It preserves the ability to change a child's name following adoption by Deed Poll.

8. In this case, in his consent to the adoption, JMS has expressed the wish that following the adoption he be known as JMSZ, preserving his original family name as an additional middle name. The question is whether in making the adoption order, I can treat that as a "decision" of JMS for the purposes of s 101(1)(a), and reflect it in the order, thereby dispensing with the requirement for a further name change by Deed Poll.

9. Having regard to the remaining provisions of s 101, which seem to contemplate various factors that the Court can take into account in making an order changing a child's name, and having regard to the express provision for an exception in s 101(1)(a), it seems to me that I can take into account those wishes, and make an order in accordance with JMS's decision that, upon the adoption order being made, he have the name which he has decided and wishes to have. Accordingly, I will in due course make the order that he have the surname Z and the given names JMS.

10. In making that order I have considered the wishes expressed by JMS and factors such as his maturity and level of understanding that are relevant to the weight to be given to those wishes, and necessarily to his own consent to the change of name.

LJS

1. LJS has not been asked to give a formal consent to his adoption, the view having been formed by an appropriately qualified counsellor that he does not, in the technical sense, have the capacity to give that consent. In those circumstances, the provisions of s 54 that otherwise have the effect that the consent of a child over 12 dispenses with any need for parental consent, do not apply.

2. However, for the purposes of s 67 of the Act, I am satisfied that, the application for the adoption of LJS having been made by persons who are his authorised carers, he has established a stable relationship with them and his adoption by them will promote the child's welfare, and I am further satisfied that to make a consent dispense order is in the best interests of the child.

3. Accordingly, I will make an order pursuant to s 67(1)(d) of the Act that the consent of LJS's natural father and mother be dispensed with. I am satisfied that at least 14 days' notice of the application for a consent dispense order has been given to the natural mother. I am also satisfied that at least 14 days notice of the application for the adoption order containing the prescribed particulars has been given to the natural mother and father, being the persons whose consent is required under the Act but has been dispensed with.

4. Taking into account all relevant matters referred to in s 8, and in particular the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, the nature of the relationship of the child with each proposed adoptive parent and the suitability and the capacity of each proposed adoptive parent to provide for the needs of the child including the emotional and intellectual needs of the child, I am satisfied that the best interests of the child will be promoted by adoption by the proposed adopting parents, and that as far as practicable, and having regard to LJS's age and understanding, his wishes and feelings have been ascertained and due consideration given to them.

5. I am satisfied that the prospective adoptive parents Mr and Mrs Z have been selected in accordance with the Act, and that consent to the adoption of the child has been given by every person whose consent is required under the Act, or has been dispensed with.

6. I am satisfied that, LJS not being an Aboriginal Torres Strait Islander child, his culture, disabilities, language and religion, and, as far as possible, given names, identity, language and cultural and religious ties, have been taken into account in the making of the adoption plan, and that the parties to the adoption having agreed to an adoption plan the arrangements proposed in it are in LJS's best interests and proper in the circumstances.

7. I consider that the making of an adoption order would be clearly preferable in the best interests of LJS than any other action that could be taken by law in relation to the care of the child. It will be apparent from that that I am satisfied that making an adoption order is plainly in LJS's best interests.

8. That leaves the question posed by s 55 of the Act, which provides that the Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless certain requirements are met or the Court dispenses with the requirement for consent; or alternatively, the Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.

9. The Director General has made submissions focused on s 55(2), to the effect that, there being evidence that in the technical sense LJS is incapable of giving consent, the circumstances are exceptional, and it would be in the best interests of LJS to make the order. As I have explained, I am amply satisfied that it would be in LJS's best interests to make the order. The question essentially is whether the circumstances are exceptional. If I am satisfied that they are, then on this application it is unnecessary to resolve the apparent inconsistencies between s 55 of the Act and s 69, which provides for dispensing with a child's consent in certain circumstances.

10. Ms Hailstone, for the Director General, referred the Court to the judgment of the High Court of Australia in Baker v The Queen (2004) 210 ALR 1, and in particular in the reference in the judgment of Callinan J (at [173]) to the decision of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198, where his Lordship said (at 208):

    We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

11. I agree that it is not necessary to be able to prescribe in advance what will or will not amount to exceptional circumstances. The critical question is whether, taken as a whole, the circumstances are such as to justify an exception from the ordinary rule being made.

12. In the context of the same phrase in this Act, Palmer J referred to some matters which constituted, for the purposes of other cases, exceptional circumstances in Re A & B (Adoption by Grandparents) (2003) 30 Fam LR 387, particularly at [18] and [19].

13. In this case, Ms Hailstone has pointed to the circumstances that LJS has been in the care of Mr and Mrs Z for 16 years, since he was seven months of age, and in reality knows no other family, that he has special needs having been diagnosed with Asperger's Syndrome, that on that account he may well need ongoing parental support after attaining the age of 18 years to an extent more than most children of that age; that he has expressed a desire that an adoption order be made; significantly, that his sibling has given sole consent and that I propose to make an adoption order in respect of his sibling; that he views his carers, the applicants, as his parents and effectively always has done so; and, that he has had no contact with his birth parents since around about 2006 or 2007.

14. Taken together, I am entirely satisfied that these amount to exceptional circumstances such as to justify the Court making an adoption order pursuant to s 55(2) of the Act.

Orders

1. Accordingly I am satisfied that the orders sought should be made.

2. In respect of JMS, I: (i) make an order for the adoption of the child JMS in favour of the adopting parents SZ and MZ and approve the name Z as the surname and JMS as the given names of the child; and, (2) further order that, notwithstanding s 101(1)(a) of the Act, JMS having otherwise decided, he is to have the names so approved.

3. In respect of LJS, I: (i) order pursuant to Adoption Act s 67(1)(d) that the consent of the child's natural mother be dispensed with; (2) order pursuant to Adoption Act s 67(1)(d) that the consent of the child's natural father be dispensed with; and, (3) make an order for the adoption of the child LJS in favour of the adopting parents SZ and MZ, and approve the name Z as the surname and LJS as the given names of the child.

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